My petition for my California Open Carry appeal to be initially heard en banc is currently being proofread. I had once thought that the petition was due before the Appellees filed their answering brief. I don't know why exactly I thought that but my en banc petition must be filed by the due date of the Appellees answering brief, which is December 19th. They could file their brief today but my petition would still not be due until next Monday.

Given that this Thursday, December 15, is Bill of Rights day, that seems like an auspicious day to file my petition.

When my case was in the district court the magistrate and district court judges gave the state's attorney extra time to file which he did not ask for and allowed him to file a time barred supplemental motion for judgment on the pleadings over my objection and in violation of the Federal Rules of Civil Procedure.

Now that my case is on appeal the state's attorney failed to file his answering brief on time in violation of an ORDER setting the briefing schedule, a briefing schedule which he agreed to. Instead, he filed a time-barred motion for an extension of time which I have objected to. I have also asked for sanctions, which I would have been subject to had I failed to file my opening brief on time.

Time will tell whether or not the rules apply to both sides.

Update by Charles Nichols, President of California Right To Carry – December 20, 2016 – I filed my Appellant’s Opposition To Appellees’ Motion For Extension Of Time To File Brief And Request For Frap 31-2.3 Sanctions.

A party to a lawsuit who misses a deadline does so at his own peril. Governor Brown and Attorney General Harris (the Appellees) were required to file their motion at least seven days in advance of the due date for filing their answering brief. Instead, they filed their motion for an extension of time on a Friday afternoon knowing their answering brief was due the following Monday. Moreover, the Appellees had already agreed to a schedule which the court signed off on via an ORDER.

I filed an opposition to their motion asking for an extension of time and I asked the Court to impose sanctions on Governor Brown, Attorney General Harris and their attorney for failing to file their answering brief on time. You can read my opposition and request for sanctions by clicking on the link.

The courts almost always grant extensions to the government because government lawyers are presumed to be juggling more cases than they can handle (which is an ethical violation but let's skip over that), very few (if any) support staff while most attorneys in private practice will take a few cases and they also have teams of paralegals and other support staff helping them. That doesn't apply in this case (except for the overworked government lawyer part). Not saying it's right, but the presumption of "overworked" goes to the government. The lack of paralegals and support staff also explains the deficiencies in briefs, yet the government will seize on a deficiency in a brief filed by opposing counsel. "Do as the court says, not as I do, otherwise I'll try to have your case tossed." It's definitely abused, as evidenced by the State of Illinois filing for extensions to delay CA7 lifting the stay on issuance of the mandate in Moore.
Sanctions for filing a time-barred brief is....it probably won't be monetary....but should be to provide an incentive for them to keep their word and abide by the Rules. I've seen many cases in which one of the parties should have been sanctioned monetarily but wasn't because judges hate imposing monetary sanctions and will do so as a last resort or if the conduct is especially egregious.
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I like the brief but I never ever see the government being denied extensions, no matter how sloppy or deficient that their counsel is.

What would be the sanctions, should the court agree with you?

Judges are bureaucrats at their core and are quick to invoke the Federal court rules as being absolute. Sometime in the last few years a successful party won a ~$150 million dollar judgment and then lost it because the lawyers did not file their paperwork on time or ask for an extension of time before the deadline to file their paperwork. I did a Google search trying to find the particular case only to discover that there are a lot of lawyers out there who lost out on collecting their winning judgments for failing to file their paperwork on time,

The state's attorney could have filed a timely motion for an extension of time or he could have utilized his free 30 day extension and then file a timely motion 7 or more days before it expired for an extension of time. By doing neither he is now time-barred from doing either.

Whatever sanctions are imposed are entirely up to the Court. I have no say in what they are, all I can do is ask that sanctions be imposed.

I always see judges here in the Central District of IL (and Northern, Southern Districts, along with Circuit Court of Appeals) allowing "do overs" for the state. The panel for Culp v. Madigan allowed the state to refile its oral argument paperwork because the attorney arguing the case (or his underling, whatever) left the line where the name of the attorney who will be arguing the case is supposed to go completely blank. Seen so many deficient filings, frivolous briefs, judges just say "Oh, you poor things. I'll let you fix that even though you have five attorneys of record and not one of them could file a brief on time after I gave you two extensions."
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Update by Charles Nichols, President of California Right To Carry – January 18, 2017 - Without explanation, the 9th circuit court of appeals Appellate Commissioner granted the state's time-barred motion for a sixty day extension of time to file its Answering Brief (now due February 17th) and denied my request for sanctions. And so the 9th circuit court of appeals is going to let the state's attorney violate the rules of the court of appeals just as the district court judge allowed the state's attorney to violate the Federal district court rules.

Docket Text:
Filed order (Appellate Commissioner): Before: Peter L. Shaw, Appellate Commissioner Appellees’ opposed late motion (Docket Entry No. [32]) for an extension of time to file the answering brief is granted. The answering brief is due February 17, 2017. The optional reply brief is due within 14 days after service of the answering brief. Appellant’s request (Docket Entry No. [33]) for sanctions is denied. Appellant’s petition for rehearing en banc (Docket Entry No. [31]) will be addressed in a separate order. (Pro Mo) [10269637] (LL)

The state's reply brief is posted. With CCW a non-issue due to Peruta, CA is trying to convince the court that there's a material difference between Moore and Nichols. (Keep in mind only rural areas of the state will issue open carry permits, LA County obviously isn't one).

So in a nutshell they are arguing that a total public carry ban is constitutional, although doing their best to mask it under an open carry ban only.

It turns out that I did not need to use any of my free, one-time 30 day extension to file my Reply Brief. My Reply Brief was filed just after midnight on March 1, 2017 and accepted as filed early this morning.

My Appeal is now fully briefed.

My petition for my appeal to be heard before an en banc eleven judge panel is still pending (filed 77 days ago) and likely will remain pending until there is a decision in the Baker v. Kealoha and the Baker en banc petitions are decided. It doesn't take a crystal ball to predict that if Baker succeeds the decision will be reheard by an en banc panel.

All of three briefs (Opening, Answering, Reply) as well as the Excerpts of Records to all three briefs are online at my website.

Due to the large size of these files, you probably won't be able to view them through a portable device. You should download them and then view them locally.

Likewise with the motions and Amicus briefs filed by the three national anti-gun groups: Brady Center, LCAV and Everytown.

For more information go to the Status Page for my California Open Carry lawsuit at my website.

P.S. The Brief In Opposition to the Peruta cert petition suggested that SCOTUS wait for my case. Here is a little something I wrote up about that.

The NRA took a parting shot at my California Open Carry appeal in its Reply Brief filed in Peruta v. California. According to the NRA my appeal “is littered with procedural irregularities and other deficiencies.”

What the NRA failed to mention is that it is the state’s attorney representing Governor Brown and Attorney General Becerra who made these mistakes. Which is why the state’s attorney asked in his brief that my appeal be sent back to the district court so that he can correct the mistakes he made the first time around. In my Reply Brief I opposed the remand for the obvious reasons that none is warranted under the law. The state was given ample opportunity to defend California’s Open Carry bans. There are no questions of fact for a jury to decide, all that remains in my California Open Carry appeal are pure questions of law.

The 3 judge panel will be announced on the Monday of the week prior to oral argument. In my case that will be February 5th.

The panel of potential judges is nationwide. All that the court rules require is that one of three judges on my panel be an active 9th circuit court of appeals judge. In the wake of the congressional proposals to break up the 9th circuit court of appeals, many of the 3 judge panels have been comprised of judges from other circuits including district court judges.

Whether or not that improves my chances or diminishes them, I will leave to others to debate.

I did a search of 9th circuit cases which were argued "In Pro Per" and the most recent case I could find which was argued before a three-judge panel of the 9th circuit court of appeals by someone who was not, and who had never been, at attorney was over twenty years ago.

He won.

Even for an appeal in which all of the parties are represented by an attorney, it is a high hurdle for an appeal to even be calendared for oral argument let alone for oral argument to take place. A great many of the cases in which each side is allocated five or ten minutes for oral argument have their oral argument canceled and taken under submission based on the briefs.

In my appeal, both sides have been given fifteen minutes to argue the case.

As the appellant, I get to have the first and last word during oral argument.

Legally, for me to lose the court must conclude that my case is incapable of amendment and for it to reach that conclusion, it will have to conclude that all of my legal theories fail and for it to conclude that then it must conclude that the right to keep and bear arms does not exist even one inch outside the doors to my home.

Why? Because the district court granted the state's motion for a judgment on the pleadings. I was not given the chance to argue my case on the merits in the district court let alone have a trial.

I did a search of 9th circuit cases which were argued "In Pro Per" and the most recent case I could find which was argued before a three-judge panel of the 9th circuit court of appeals by someone who was not, and who had never been, at attorney was over twenty years ago.

He won.

Even for an appeal in which all of the parties are represented by an attorney, it is a high hurdle for an appeal to even be calendared for oral argument let alone for oral argument to take place. A great many of the cases in which each side is allocated five or ten minutes for oral argument have their oral argument canceled and taken under submission based on the briefs.

In my appeal, both sides have been given fifteen minutes to argue the case.

As the appellant, I get to have the first and last word during oral argument.

Legally, for me to lose the court must conclude that my case is incapable of amendment and for it to reach that conclusion, it will have to conclude that all of my legal theories fail and for it to conclude that then it must conclude that the right to keep and bear arms does not exist even one inch outside the doors to my home.

Why? Because the district court granted the state's motion for a judgment on the pleadings. I was not given the chance to argue my case on the merits in the district court let alone have a trial.

That is pretty interesting, in that the 9th circuit has said that concealed carry is not a right or allowed, so since in Heller, McDonald, and Norman have determined that the right to keep and bear arms, including outside the home, is what the Second Amendment expressly reserves for the people, the 9th will be literally violating the Constitution undeniably if they don't allow open carry instead. They've painted themselves into a pretty sticky corner here, it seems,

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me

“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb

“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein

“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me

"That is pretty interesting, in that the 9th circuit has said that concealed carry is not a right or allowed, so since in Heller, McDonald, and Norman have determined that the right to keep and bear arms, including outside the home, is what the Second Amendment expressly reserves for the people, the 9th will be literally violating the Constitution undeniably if they don't allow open carry instead. They've painted themselves into a pretty sticky corner here, it seems,"

I am looking forward to see how the 9th un-screws their way out of this one while avoiding violation of 2A rights. Been there and have no need to revisit, as in Jersey and New York too.

I would only go for a funeral or if they get their 2A laws straightened out.

"That is pretty interesting, in that the 9th circuit has said that concealed carry is not a right or allowed, so since in Heller, McDonald, and Norman have determined that the right to keep and bear arms, including outside the home, is what the Second Amendment expressly reserves for the people, the 9th will be literally violating the Constitution undeniably if they don't allow open carry instead. They've painted themselves into a pretty sticky corner here, it seems,"

I am looking forward to see how the 9th un-screws their way out of this one while avoiding violation of 2A rights. Been there and have no need to revisit, as in Jersey and New York too.

I would only go for a funeral or if they get their 2A laws straightened out.

If they do say that open carry is illegal, wouldn't that be a similar situation to what happened in Illinois, where the courts gave a deadline to come up with something ostensibly Constitutional or else it defaulted to Constitutional carry?

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me

“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb

“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein

“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me

"That is pretty interesting, in that the 9th circuit has said that concealed carry is not a right or allowed, so since in Heller, McDonald, and Norman have determined that the right to keep and bear arms, including outside the home, is what the Second Amendment expressly reserves for the people, the 9th will be literally violating the Constitution undeniably if they don't allow open carry instead. They've painted themselves into a pretty sticky corner here, it seems,"

I am looking forward to see how the 9th un-screws their way out of this one while avoiding violation of 2A rights. Been there and have no need to revisit, as in Jersey and New York too.

I would only go for a funeral or if they get their 2A laws straightened out.

If they do say that open carry is illegal, wouldn't that be a similar situation to what happened in Illinois, where the courts gave a deadline to come up with something ostensibly Constitutional or else it defaulted to Constitutional carry?

That is unlikely. Should I win, the more likely scenario is either the decision will be stayed pending a decision on the state's en banc petition or the en banc petition will be granted before the mandate is issued which would vacate the three-judge panel decision. We would then have to wait for the decision by the en banc panel.

Also, the laws are more complicated here in California and became more interesting as of January 1st when the expansion of the ban on openly carrying unloaded long guns was extended from incorporated cities to "prohibited areas" of unincorporated county territory via one bill while a second bill made it legal to openly carry unloaded handguns and unloaded long guns within 1,000 feet of all K-12 public and private schools, but not beyond 1,000 feet except where prohibited by The California Gun-Free School Zone Act of 1995.

The California GFSZ doesn't prohibit the carrying of long guns anywhere within the 1,000 foot "gun free" zone and doesn't prohibit handguns "Within a place of residence or place of business or on private property, if the place of residence, place of business, or private property is not part of the school grounds and the possession of the firearm is otherwise lawful."

Also, unlike Illinois, California already provides for licenses to openly carry handguns but the licenses are limited to counties with a population of fewer than 200,000 people and are only valid in those counties.

Of course, it would be nice if President Trump were to quickly fill the seven current and upcoming vacancies on the 9th circuit court of appeals. That would make things a lot easier on the left coast.

"That is pretty interesting, in that the 9th circuit has said that concealed carry is not a right or allowed, so since in Heller, McDonald, and Norman have determined that the right to keep and bear arms, including outside the home, is what the Second Amendment expressly reserves for the people, the 9th will be literally violating the Constitution undeniably if they don't allow open carry instead. They've painted themselves into a pretty sticky corner here, it seems,"

I am looking forward to see how the 9th un-screws their way out of this one while avoiding violation of 2A rights. Been there and have no need to revisit, as in Jersey and New York too.

I would only go for a funeral or if they get their 2A laws straightened out.

If they do say that open carry is illegal, wouldn't that be a similar situation to what happened in Illinois, where the courts gave a deadline to come up with something ostensibly Constitutional or else it defaulted to Constitutional carry?

That is unlikely. Should I win, the more likely scenario is either the decision will be stayed pending a decision on the state's en banc petition or the en banc petition will be granted before the mandate is issued which would vacate the three-judge panel decision. We would then have to wait for the decision by the en banc panel.

Also, the laws are more complicated here in California and became more interesting as of January 1st when the expansion of the ban on openly carrying unloaded long guns was extended from incorporated cities to "prohibited areas" of unincorporated county territory via one bill while a second bill made it legal to openly carry unloaded handguns and unloaded long guns within 1,000 feet of all K-12 public and private schools, but not beyond 1,000 feet except where prohibited by The California Gun-Free School Zone Act of 1995.

The California GFSZ doesn't prohibit the carrying of long guns anywhere within the 1,000 foot "gun free" zone and doesn't prohibit handguns "Within a place of residence or place of business or on private property, if the place of residence, place of business, or private property is not part of the school grounds and the possession of the firearm is otherwise lawful."

Also, unlike Illinois, California already provides for licenses to openly carry handguns but the licenses are limited to counties with a population of fewer than 200,000 people and are only valid in those counties.

Of course, it would be nice if President Trump were to quickly fill the seven current and upcoming vacancies on the 9th circuit court of appeals. That would make things a lot easier on the left coast.

So, ultimately, if things go your way in the long run, what will the final hoped-for result be? What are the possibilities of what else it might end up being, if there is a firearm-friendly decision of some sort?

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me

“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb

“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein

“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me

Well at least you don't have to worry about Judge Pregerson anymore (RIP Judge, even if you were a flaming liberal). I don't understand why Trump isn't filling seats on that court since Grassley threw out the blue slip rule for circuit judges.
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